301 Mass. 559 | Mass. | 1938
The plaintiff has secured a judgment against the defendant Pamoukis for bodily injuries received in an accident in the State of Connecticut resulting from the operation by that defendant of an automobile upon which the defendant Preferred Accident Insurance Company of New York, hereinafter called the company, had issued a policy of liability insurance. This suit is brought under G. L. (Ter. Ed.) c. 175, § 113, and G. L. (Ter. Ed.) c. 214, § 3 (10), to reach and apply the alleged obligation of the company to Pamoukis in satisfaction of the plaintiff’s judgment.
As the obligation which the plaintiff is seeking to reach,
We are confronted at the outset with a question as to the scope and effect of the judge's findings of fact. The plaintiff contends that the defence cannot prevail and that the decree in favor of the defendant was erroneous because the judge did not set forth any specific finding that the policy contained any “cooperation clause” or any specific findings showing such intentional or inexcusable absence from the hearing on the part of Pamoukis as would constitute a breach of such clause if the policy did contain one. This contention cannot be maintained. The evidence is not reported. The judge made brief findings of fact in connection with his order for decree, but he did not state that the findings expressed were all of the findings upon which he based his decree, and there is nothing in their form to indicate that he intended them as such. Apparently these findings were made voluntarily and not as a report of “the material facts found by him” under G. L. (Ter. Ed.) c. 214, § 23. The entry of the decree imported a finding of every fact essential to sustain it and within the scope of the pleadings. Glazier v. Everett, 224 Mass. 184. Star Brewing Co. v. Flynn, 237 Mass. 213, 216. Whitney v. Whitney, 299 Mass. 547, 550. See Briggs v. Sanford, 219 Mass. 572; Seager v. Dauphinee, 284 Mass. 96, 98. This is true even though the judge made specific findings of certain facts, as long as he did not purport to state all of the material facts. Cleveland v. Hampden Savings Bank, 182 Mass. 110. Gladstone v. Aronson, 277 Mass. 163, 165. Goodyear
In the case of Cohen v. Nagle, 190 Mass. 4, at page 5, the statement was made, and it has occasionally been repeated, that a report of facts voluntarily made by the trial judge has the same effect as a report of “the material facts” under the statute. See, for example, Lindsey v. Bird, 193 Mass. 200, 201; Howe v. Howe, 199 Mass. 598, 601; Smith v. Smith, 222 Mass. 102, 103; Taylor v. Jones, 242 Mass. 210, 216; Berman v. Coakley, 257 Mass. 159, 161; and Edwards v. Cockburn, 264 Mass. 112, 115. This statement cannot be understood to mean that a voluntary finding of certain facts only which may not amount to a full report of all the facts upon which the decree rests is for all purposes equivalent to the complete report of "the material facts” contemplated by the statute. In the cases just cited the precise question here presented was not before the court. The distinction between findings which are complete and those which are incomplete seems to have been in the mind of the court in Romanausky v. Skutulas, 258 Mass. 190, at page 192, and Goldston v. Randolph, 293 Mass. 253, at page 255.
It is, however, open to the plaintiff to contend, and he does contend, that the findings specifically stated by the judge in themselves necessarily preclude the maintenance of a defence based on failure of the insured to “cooperate.” Wood v. Culhane, 265 Mass. 555, 556. Columbian Insecticide Co. of Boston v. Driscoll, 271 Mass. 74, 77. Peabody v. Dymsza, 280 Mass. 341, 342. Marcus v. Richardson, 299 Mass. 11, 13. The substance of these findings is as follows:
In the opinion of a majority of the court these findings are not inconsistent with the decree establishing the defence of failure to “cooperate.” So far as they go they tend to show that Pamoukis failed to assist the company in the defence of the action. They do not show that the company waived its rights or that it is estopped to insist upon the conditions of the policy. It is consistent with the findings that the company continued to defend before the auditor in reliance upon the promise of the insured Pamoukis that he would attend the hearing and in the expectation of his arrival at any moment. Action taken after the filing of the auditor’s report looking solely toward the preservation of the right of the insured to a jury trial could not have harmed him in any way. It is not shown that by any conduct of the company Pamoukis was deceived or lulled into a false sense of security or deprived of his opportunity to defend himself or “induced to do anything different from what he otherwise would have done,” to his detriment. Lunt v. Aetna Life Ins. Co. 261 Mass. 469, 473. Kana v. Fishman, 276 Mass. 206, 213. Sontag v. Galer, 279 Mass. 309, 311-312. Goldberg v. Preferred Accident Ins. Co. 279 Mass.
Decree affirmed with costs.